tv Key Capitol Hill Hearings CSPAN November 28, 2016 12:18pm-2:19pm EST
the effect is. i think that means people aren't really thinking critically and analytically what criminal justice reform looks like on that level. >> there is a lot of great questions i'm not getting to. let me end with this one, and i'll read it verbatim here. it's great to use data to change people's minds. their perceptions about people in prison, but we'll never reach people's heads without reaching their hearts. how would you, each of you respectfully, reach people's hearts about the integrity, intelligence, character and courage of people in prison? >> i can tell you what we've done is you have to take the state senators to the prisons, and have them visit. then they can see what is happening. that's from the policy level. but at a real grassroots level, it is one officer at a time.
it is having them attend the graduation, and see -- hear people speak and see the transformation, not just read about it, but see the transformation. and it is one heart at a time and it does work. >> i think it is that, and i also think it is directly confront, asking individuals a couple of questions. so how would you want your loved one treated. should he or she be caught up in this system. what do you expect of individual s when they return, since 95% of all people return home? lastly, do you want to be judged by the worst that you've ever done the rest of your life and have people concentrate on the answer to those. they begin to see their way as to how we treat people in prison matters and we have to provide hope, opportunity and skills. >> shawn? >> i don't know if i can add
anything more. i mean i think it is. i think it is about, you know, i do think it is about hearts, right. is there -- let me look at my own life. but i also, i also want justice. i also want the freedom to live my life and i don't necessarily want to wait for people to like me. before i get what i'm supposed to have. so yes, committed to changing hearts. really interested in changing policy. because i think, you know, there will be some folks who are close to the middle who we can get to come over and there will be other folks who we won't ever get to come over, but still need to demand equity and justice. >> yeah there is no good answer. i mean, you have to find the best lever that works. whether that's for some people, it's a fiscal level, fiscal lever, and for other people, it
is, you know, we saw the video earlier, you know. and someone who the numbers may not get to, seeing that video might say you know what, you know, i've been demonizing people or thinking about people in the wrong way. that's going to change it. using ever lever that's available. >> well, thank you to the audience. thank you to the panelists. thank you to david sokolow, wayne, class for putting this altogether. i hope this has provided food for thought at the very least and maybe some practical ideas for all of you to implement in your daily lives. so, thank you. [ applause ] congress is back today after the thanksgiving holiday with the lame duck session continuing today at 3:00 p.m. eastern in the senate. where senate lawmakers will be debating a bill regarding health care for rural areas. see the senate live on c-span2. u.s. house will gavel back in tomorrow. and democrats will hold leadership elections as nancy
pelosi seeks to continue as minority leader. later in the work, work on fda approval of drugs and medical devices. house members might also consider defense programs. see the house live on our companion network c-span. former homeland security secretary michael chertoff is in a discussion about isis terrorist attacks. c-span will have live coverage at 6:30 p.m. eastern. 11th circuit judge william pryor is on trump's list of supreme court nominee. we offer views on legislative intent and decline of legislative history.
we're going to get started. i'm john baker. i'm filling in for john eastman. john so another panel in another room at this time, so at this point all i'm doing is welcoming you here on behalf of the separation of powers and federalism group of lawyers within the federalist society. if any of you, after hearing this, are interested in joining our section, please contact either professor john eastman or
dean rueter. so, with that i'll ask that the doors in the back be closed so that we can start the program. it's my great pleasure to introduce judge william pryor of the 11th circuit. good after. this panel will discuss justice scalia on federalism and separation of powers. now, justice scalia's views on this subject were fairly well known. in 2008 he authored a foreward so symposium separation of powers.
entitled "the importance of structure in constitutional interpretation" left no doubt what justice scalia's view on the subject was. i'd like to read a couple paragraphs of what justice scalia said in that foreword. in the days when i taught constitutional law, the university of chicago law school had two constitutional course. one was entitled, individual rights and liberties and focused primarily upon the guarantees of the bill of rights. the other, i forget the title of it, focused upon the structural provisions of the constitution. principally the separation of powers and federalism. that was the course i taught. and i used to refer to it as real constitutional law the distinctive function of the constitution, after all, is con
sti tut the political organization. many personal protections against the state taught in constitutional law courses here, restrictions upon unlawful searches and seizures, used to be taught in europe as part of administrative law. they were, to be sure, made part of our constitution. though most of them, as an appendage to the original document. that was, no doubt, desired. but it is a mistake to think the bill of rights is the defining or even the most important feature of american democracy. virtually all of the countries of the world today have bills of rights. you would not feel your freedom secure in most of them. consider, for example, the following sterling examples of a modern biffle rights. every citizen has the right to
submit proposals to state bodies and public organizations for improving their activity and to criticize shortcomings in their work. persecution for criticism is prohibited. persons guilty of such persecution should be called to account. citizens are guaranteed free gom of speech, of the press and assemb assembly. exercise of these political freedoms is ensured by putting public building, streets and squares at the disposal of the people and their organizations. by broad dissimilar nation of information and bit opportunity to use the press, television and radio. finally, citizens are guaranteed freedom of conscience, that is the right to profess or not to profess any religion and to conduct religious worship or aethistic propaganda. justice scalia wrote, wonderful stuff. these were the provisions of the
1977 constitution of the union of soviet socialist republicans. they were not worth the paper they were written on. as are the human rights guarantees of a large number extent countries gorchd by presidents for life. they are what the framers of our constitution called parchment of guarantees because the provisions that establish the institutions of government do not prevent the central sdmrags of power in one man or one power, thus enabling the guarantees to be ignored. structure is every day. justice scalia often said that while he always tried to get the bill of rights cases correct, he cared most about the constitutional structure cases. once or twice each summer he even taught a course called separation of powers. his opinions on the structural issues of separation of powers and federalism often cited the
federalist papers. he routinely urged law students and lawyers to read the whole of the federalist. this panel looks at justice scalia's federalist focus on the importance of separation of powers and federalism as structural protections of liberty. and as usual, the federalist society has assembled a terrific panel to discuss these issues. i will introduce each of the panelists in the order in which they will speak. they will each speak about eight minutes, and then we'll have some responses to each other and then we'll begin entertaining questions from the floor. our first speaker, very fittingly, is professor john baker. dr. baker has been a visiting professor at georgetown law school and is a visiting professor at peking university school of transnational law. he is professional emeritus of law at louisiana state
university law school. he is also taught at a number of other law schools, i should note, including tulane. professor baker received his j.d. with honors at the university of michigan law school and his bachelor of arts magna couple laud from university of dallas. he also earned a ph.d. from the university of london. for several years professor baker taught the course for the federalist society on separation of powers with the late justice scalia. our second speaker is professor jonathan turley. it's going to be tulane day. jonathan turley is a nationally recognized legal scholar who has written extensively in areas ranging from constitutional law to legal theory to tort law. he began his teaching career at tulane law school and then joined the george washington university faculty in 1990. and in 1998 became the youngest
chair professor in the school's history. he's the founder and executive director of the project for older prisoners. he has written more than three dozen academic articles that have appeared in a variety of leading law journals, including those of cornel, duke, georgetown, harvard and northwestern, among others. he most recently completed a three-part study of historical and constitutional evolution of the military system. he has served as a consultant on homeland security and constitutional issues and is a frequent witness before the house and senate. professor turley received his undergraduate degree from the university of chicago and his law degree from northwestern university. his first job out of law school as a law clerk on the united states court of appeals for the fifth circuit where yours truly was clerking for a judge that year as well. we go way back.
luther strange is the attorney general of alabama. a high post in government. before his election, general strange practiced law in birmingham, alabama, and before establishing his own law firm was a partner with bradley bolt cummings. he is the chairman of the republican attorneys general association. he also served as the court-appointed coordinating counsel for the gulf coast states in the historic deepwater horizon oil spill litigation. general strange is well educated. he received both his undergraduate and law degrees from tulane. he was a scholarship basketball player while earning his undergraduate degree at tulane. in june of last year -- or this year, i'm sorry, he was inducted into tulane law school hall of fame.
johner beline is the founding director of cato center for constitutional studies, also the founding publisher of the cato supreme court review and inaugural holder of cato's b. kenneth simon in constitutional studies. before joining cato, he held several posts in reagan administration, including state and justice, and was a national fellow at stanford hoover institution. roger holds a b.a. from columbia university, m.a. and ph.d. from university of chicago, and a j.d. from the george washington university school of law. and finally, congressman rhonda sntos being elected to united states house in 2012. congressman of florida has served on the judiciary, foreign affairs and oversight in government reform committees. he's the chirm of the
oversight's committee national subcommittee and vice chairman of the judiciary committee's subcommittee on constitution and civil justice. he earned a bachelor of arts magna cum laude and baseball at varsity baseball team at yale, continuing the athletic theme. also graduated with honors from harvard law school. he earned a commission in united states navy as a j.a.g. officer. during his active duty navy service he served as a military prosecutor, supported operations at the terrorist detention center in began taun mow bay, cuba, and deployed to iraq during the 2007 troop surge as an adviser to a u.s. navy s.e.a.l. commander in support of counterinsurgency operations in iraq. he's also performed duties as a federal prosecutor, taught courses on military law and written on constitutional
issues. he's currently a lieutenant commander in the u.s. navy reserve. thank you for your service. we will begin with professor baker. [ applause ] >> thank you, judge. in this contention you will hear a number of references to justice scalia's lone dissent in the independent case morrison v. olsen. that went from being largely dismissed to being universally celebrated. ed whalen in a piece in the national review online last month, in september, chronicled the movement of linda greenhouse to a conversion. miss greenhouse now describes justice scalia's dissent being
far-seeing, prophetic. richard reeves used the same word in praising justice scalia's dissent in morrison back when ken starr was investigating as independent counsel president clinton, i think there was a connection there, that caused some rethinking here. for the most part, however, liberal commentators have not praised justice scalia's opinions. most often detractors have used the word, uncompromising. in a negative way to describe the justice's pnz. of course, admirers, use the word uncompromising in a praise-worthy sense when talking about justice scalia. what the usual detractors do not understand is justice scalia was able to be far-sighted, prophetic, precisely because he
was uncompromising in looking backwards. now, of course, virtually everyone knows that justice scalia looked back to the public meaning of the words of the constitution as understood at the time of the -- they were drafted. also most here in this convention will know that justice scalia's originalism was tied to constitutional structure, as judge pryor just talked about. but how many of you even here realize that his understanding of structure came largely from the federalist papers? that's what i want to discuss. i'll make three points. hopefully i'll get to the third one. the importance of justice scalia's place on the federalist papers to how justice scalia's understanding of the constitutional structure primarily separation of powers, as explained in the federalist, under gur his approach to the
constitution. time-permitting i'll explain something about federalism. first on the importance of the federalist, as you've already heard, justice scalia would routinely ask students and lawyers in meetings or groupings, have you read "the federalist" and some hands would go up? and he would say, no, i mean the whole federalist? and hands would go down. his materials in the course we taught, that he taught as well every summer on separation of powers always began with federalist 47 and 48. those are the main ones on separation of powers, although separation of powers runs throughout the essays of the federalist. usually after we got done with that, then he would go into an attack on the progressives and their attack on separation of powers. often it was an attack on justice cardoza's reference to separation of powers as, quote, a fetish. last time he taught, it was a sustained dialogue, one might
say diatribe, against woodrow wilson is and his attack on separation of powers as being terribly ad modum. early on in our relationship i asked him, when was it he started to pay attention to the federalist? he said it was when he was head of olc because he said the questions we were dealing with, there was no case law. where would you turn? like the founders, like the first generation, like the marshall court, where do you turn? well, you turn to the text. but in many ways the text is like the building plan and it doesn't always explain exactly how things lock together when they could lock together in different ways. understanding that is really part of the context in which his originalism and context actualism must be understood. some of the examples, as many law professors have taught over
the years, they've taught that marbury is chief justice marshall cleaverly figuring out how to get around jefferson. well, as lee otis has written, in class, before he was on the bench, then-professor scalia, would explain how this is really how the constitution, as supreme law s supposed to work. now, this can give text actualists some problems because there's nothing in the text that says judicial review or what the court's power shall be. it says about the rule of law and says about its jurisdiction. but in our seminars he would be much more simple about it. he would just say, marshall plagiarized federalist 78. that simple. now, the fact is you can take most of the landmark opinions of the marshall court even though they did not cite the federalist, and they're straight out of the federalist.
but this question of whether it is or isn't out of the federalist has to do with the legitimacy and limits of judging. think about it. there are many conservatives who believe that somehow judicial review is illegitimate. and if it's illegitimate, the question is, are you going to be slightly illegitimate and restrained or fully illegitimate? it's like being partially pregnant. it is just hard to restrain from going from partially to fully. and if, however, you understand separation of powers as he did, then there are times when you are forcefully uncompromisingly limiting the power of one of the other two branches. but that doesn't make you an activist. and he really didn't use that term. it is a question for him of
following the text. but text is tied to the structure. two, his citations to the federalist were not just window dressing. there was an article in the william&mary law review in which a professor suggested every time a supreme court justice cites the federalist it's really much about nothing. that was not the case with the justice. you can see it if you read and analyze and compare, for instance, in morrison v. olson the majority opinion written by the chief justice and the disse dissent. so, if you look at that, what you will see, first of all, what's remembered are all the great one-liners. and i heard it at lunch, and one of the things -- a wolf comes as a wolf. that's what people remember. and when he was hailing the demise, in a way of -- what's
the -- anyway, he said -- he said, i'm glad to see that those who live by the ibsidixit die by the ipsidixit but he used those memorable phrase in order to get to you pay attention to what he was actually saying. what he wants you to do is look at the way he argues as compared to the way they argue. in many ways, the chief justice in that case was the text actualist because he starts out with the appointments clause. doesn't mention separation of powers. then he goes to the removal. there's no clause on removal. it goes back to a famous decision in 1789 in the congress. and then he goes through all the cases. and then at the very end, he says, well, what about separation of powers as a whole?
justice scalia's dissent is the flip of that. he starts with the principle of separation of powers. then he works through it. completely different approach in terms of where you start. now, that can pose a problem for some text actualists. as they say, you could say, where is separation of powers even in the constitution? there's no term there. that term appears in the 1780 constitution of massachusetts. it doesn't appear in our document because it's a blueprint. it's not an explanation. the federalist is the explanation of the blueprint. i wasn't going to spend much time on federalism anyway because although he got the federalism decisions right, he didn't much focus on them. why? well, as he said one time, the 17th amendment, direct election of senators, basically killed
federalism. he also said, if the people won't preserve federalism, don't expect federal judges to preserve federalism. but more importantly, in a way, some of the important federalism cases are also separation of powers cases. think of the sovereign immunity 11th amendment cases. it's the states, it's the federal government, congress enacting something. think about obamacare. federalism is really the joiner of federalism and separationer of powers. justice -- in conclusion, justice scalia's lone dissent in morrison against presidential power as given in article 2 was ultimately vindicated. it will be interesting to see if the constitutional limit on expansion of presidential power will be vindicated. although justice scalia died
before the 4-4 split in u.s. versus texas on the issue of president obama's order improperly allowed deferred action on illegal aliens, i don't think that there's much doubt about how he would have voted in that case. so i wouldn't be surprised to see justices who have taken, so far, a flexible approach to separation of powers suddenly become uncompromising about separation of powers as applied to limits on presidential power during the presidency of donald trump. thank you very much. [ applause ] >> first of all, i'd like to thank the federalist society again for the honor to speak with you today. it's a particular honor to appear with my former co-clerk,
judge pryor. the only -- the strongest memory i actually have of him from when we clerked together on fifth circuit is my judge and his judge sat in the same panel. there was one case that was just unbelievably sexy constitutional case. and john minor wisdom was already senior status so my judge was technically the head of the panel, so i spent the entire week, as my judge would often defer, because he's a very, very nice guy. i said, you got to grab the case. you're both going to be on the same side. don't let wisdom get the case. for the love of god, please. i'm walking towards him for conference, just grab the case. say you'll grab the case. i come around the corner and there's pryor talking to wisdom, you know, feverishly. and pryor looked up with the most menacing look i've ever seen in my life and, sure enough, they wrote the opinion. and i've been bitter about it ever since. so, thank you for this cathartic moment.
>> purification. >> yeah. anyway, it's a great honor to speak about justice scalia. you know, scalia and i shared a sicilian heritage. i'm half sicilian and half irish, much like his kids, which i would remind him of when he made fun of me. when justice scalia passed away "the washington post" called and said, do you have any memories you would like to share? the only one that came to mind was we were at a dinner for a sicilian senator and we were standing by a window and justice scalia was holding forth on a story and the security guards kept trying to move us away from the window. scalia wouldn't move. and the security guards tried. finally this guy turns to me and says, why won't he move? we're afraid there's a hit team looking for the sicilian senator and we're afraid they're in danger at this reason. i said, the reason is justice
scalia is telling a story. i'm pretty sure that he'd rather die than end the story, but i know he'd rather one of us die. but the fact is i thought about that story only because people have been trying to move scalia to the left or right his entire life. he never did. he was one of the few justices that could honestly say that he changed the court more than the court changed him. and the reason is because he came to the court with a very profound sense of the constitution and its history. one of the things i think gave him that foundation, that legacy, was that he based his opinions heavily steeped in the federalist papers. he also had a formalist approach to the constitution, which i'm going to mention in a second. i share that approach. i'm sort of in a minority among academics in believing in a formalist approach to separation of powers. most academics view that view as
naive and simplistic. in fact, i just gave a speech at georgetown where one of the questions is, you do accept, right, that words have no do object words have no objective meaning. there was a time when a statement like that would have left me entirely confused, then i remembered i was at georgetown. so the fact is the original deal, those words did have meaning. while my colleagues view it as a lie, it was the original lie people were given. scalia saw it that way. it added a depth and coherence to his opinions. for me the really most indicative and profound opinion he wrote was in prince, a method
logic logical. he famously said in that opinion, because there are no constitutional texts speaking to this precise question, the answer must the historic understanding and practice. when lou back at the statement and you see what came after it, you realize how profound that was. he tended to run home. he tended to run home to federalist papers, run home to the text, the oshlg meaning. in that decision, of course, you had this wonderful clash between scalia and suddeder over federalist, 47, 44, 45 they debated. what was interesting, even souter said the federalist papers should be given great
weight in the analysis of the case. this case dealt with having state officials who would be required to carry out federal functions or duties. so what happened was this wonderful exchange. quite frankly scalia, in my view, got the better of the exchange as to what was meant by this structure. it was scalia who would often talk about the dual sovereignty of federalism. this concrete notion of the relationship of the federal government to the states. and that sense of clarity, that formalistic approach was also evident in morrison as just discussed. not going to discuss it further since it was just discussed by john. but in that case, simply note that once again when he answered the question, which he said that opinion was one of his most difficult, he went back to the federalist papers and quoted federalist 51, when said, the weight of legislative authority requires it should be thus
divided, the weakness of the speculative may require, on the other hand, that it be fortified. so he was very conscious of these lines. that's one of the reasons i like his work so much. i happen to believe that words do have meaning in the constitution, despite my own personal policies and interest. i think there are parts of the constitution that have static meaning. they must have static meaning. there's others that might be a little more fluid. when it comes to the separation of powers and federalism, those are static concepts that should not change through time. in that sense scalia was the rock that would bring us back to that original meaning. so scalia did refuse to compromise because he had principles. that's particularly why he he will have a legacy. there are many justices before him and i'm afraid that could
follow that will not be able to make that claim. he was coherent and consistent because he had principles. people often criticized him being dogmatic. but you're supposed to be dogmatic with principles. otherwise you are unprincipled. when he passed, i felt not only did we lose a judicial icon and also a wonderful human being, i don't know anybody that ever knew scalia that didn't like him. he was remarkably likable. he would try to get into a fight with anybody over any subject because he really liked law students. if there was a pet in the room, he tried to argue with the pet. because he was vivacious, intellectually alive. that's what comes out of these opinions. he was a great believer in a formalist separation, not just separation of powers but in terms of federalism. when he left, i remember
thinking about a wonderful quaker saying that said, quote, i have pass this way but once. any good i can do or kindness, let me do it now. not defer or neglect it for i shall not pass this way again. scalia didn't wait, didn't compromise, he did what he could and remained confident about it and committed to it. because of that, his light may not come this way for some time. there are many people who do cherish the legacy he left, respect the principles he represents and carry on those same principles in the future, i believe. thank you very much. [ applause ] >> thank you, jonathan. i'm going to take the risk of standing up at this podium, although i'm pretty far away from it. i hope you can hear me all
right. it's just an incredible honor to be here. i want to thank federalist society for inviting me and including me in this distinguished group of colleagues and friends and people i admire and people i've known for a long time. it's wonderful being attorney general in the state of alabama and this time in the nation's history to be conservative attorney general from any state. i get to follow in the footsteps in an office that was really formed by my close friend jeff sessions and my close friend bill pryor who set an example that i have tried to follow in my years in the office, the six years that i've been there, six very active years. i met bill many years ago. at the advice of jeff sessions, he said you need to encourage young conservatives that want to run for office and be involved in the debate. i didn't know what that meant. i volunteered for senator sessions when he pulled a great political upset in alabama. somehow or another, i guess nobody else would do it or could
do it, i ended up being the chairman of his election campaign when he took jeff's place. i remember walking the halls -- we stayed up all night on election night. the judge knows the exact total of his victory, but it was something like -- how many votes was it. >> 6,777. >> 6,667. >> 1.3 million. >> suffice it to say it was close. as a matter of fact ap hadn't called it. we were up literally all night walking the back room of the ballroom wringing our hands. we finally decided, the candidate did, we're going to go out and declare victory and make them prove we didn't win. of course he did win and the rest is history. when bill with us attorney general, not long ago, really, there were maybe six or seven, less than 10 attorneys general in the united states. now there are 29 after last
tuesday's election. 29 conservative republican -- i was proud to be elected chairman last weekend at our meeting in austin. two weeks ago, actually the thursday of the election, kim strawsel who will be here saturday morning to sign her book, which i urge you to do, wrote an article in the "wall street journal," attorneys general of the united states are the last line of defense, protection of the constitution and rule of law. of course the world changed then. my remarks changed today a little bit after this election. we're no longer the last line of defense, we're now the tip of the spear. the whole issue, i said it's a time to be attorney general, the oath we take, all elected officials take is uphold constitution of the umbrellas, irrespective to say uphold the rule of law. politicians come and go.
some we'd like to go sooner than others but they all eventually come and go. it's what preserves our freedoms, our rights, opportunities, economy, everything we enjoy in this country is constitution and rule of law. our panel said it very nicely. we don't get to pick and choose the laws we like. there's a democracy set up for the purpose. it works extraordinarily well if we protect and reserve preserve. we're talking bowed federalism and we'll hear about horizontal federalism, the balance of power in our country. one of the things i've hoped for quite some time now is that congress would reassert, find a way to reassert the balance of power in washington a lot of power given away, throwed a lot of problems we address. i had great hope. there's also vertical separation, the states versus federal government.
that's where we attorney generals have been very active in the last six year, really eight years. i don't have a precise number. dozens have been filed against obama administration over the last number of years for violating the rule of law, for exceeding the powers that congress granted to them. we've studied and we've won. i mentioned the last line of defense. i'll just mention three cases that sort of illustrate the point. one has to do with bathrooms. i really never thought when i was elected attorney general i would be litigating in federal court about that but the department of education in its wisdom decided all schools should require all people, depending on their own definition of their sexual orientation to use the bathroom of their choice or face the loss of federal funds. that was done may 13th, 2016. may 25th, 11 states challenged
that rule. august 21st, a nationwide injunction secured three months after the initial action. i'll editorialize. i was curious when the issue was brought to my attention, i asked one of our school administrators, is this a problem? is this really a significant problem that requires a federal mandate. you might not be surprised if you live in the real world that this supervisor said, actually, it's not a problem at all. this occasionally happens in our school systems. we do something really revolutionary, we have the teachers and the parents and the students and administrators all sit down and see if we can work out an accommodation that works for everyone. that's exactly what we've done. it is not a problem. it is a problem for 99.9% of the other parents who don't understand this when the federal government mandates something like that. so regardless of that, we were successful. immigration, it was mentioned earlier. the president issued the order in november 2014 to legalize
millions of immigrants in this country. less than two weeks later 17 states filed a lawsuit challenging that action. june 23rd of '16, the supreme court put an end to the president's effort. the last i'll mention because it's particularly relevant to our discussion about justice scalia, the power plan rule tremendously important to my state, to many states in this country. the epa issued the rule in october 2015. on the same day 23 states filed a challenge for the ruling in federal court. the supreme court stated the power plant rule was quite extraordinary. that was the last vote official act of justice scalia. so it was critically important. so much to his legacy. my final hope i'll express is the congress and new administration will find a
person who will fill the role he's played in his shoes in the coming days, months, and as they deliberate that. we republican ags look forward to that because i'll get back to where i started. regardless of who is the president, or who is in congress, we will continue to take our role seriously, defend the constitution and uphold the law in this country. i appreciate the opportunity to be here and look forward to your questions and our discussion. thank you. [ applause ] >> i, too, want to thank the federalist society for inviting me here. when dean called me to see if i'd be interested speaking, he said he wanted some ballot panel. balance. i thought, well, you must have read my forward to new supreme court review which was titled "justice scalia's originalism:
original or post new deal." so i think you know where that went. so i am going to bring a little balance. i'm going to be -- i hate to be the skunk at the garden party. actually i don't, now that i think about it. but i loved justice scalia. every time i ran into him we got into an argument. he loved to argue, just loved it. if you took one position, he'd take the other and then you'd flip around. it was great fun to argue with him. for our subject here today, which is federalism and structural protections, he was absolutely right that the structural protections for liberty are the main protections for liberty. he was correct also that the bill of rights was an afterthought, as he often said.
unfortunately too often he ignored the changes the civil war amendments made to those structural protections because he too little regarded the authorize that undergirds the constitution and that led him to place democracy over liberty. that undergirding theory, state of nature theory, can be seen in the preamble. before that in the declaration. before that in the second treatise of course. he called operative provisions. method protectionism, all salutary if you follow it, which he didn't always do. those tools are often insufficient, of course, when you get to broad or vague texts. at that point have you to have a theory of the matter. you have to know where you're going.
have you to know in particular what the presumption is. a judge can't simply throw up his arms and say let the people decide unless the text clearly points that way. the constitution -- after all this constitution, which the judge takes a duty to uphold, was written not simply to empower officials but to limit them as well toward liberty, not simply toward power as the preamble and declaration make clear, the bedrock principle in short is liberty. reflecting the state of nature reasoning of the second tret treatise. government rests with people. they create the government to secure their rights. toward that end, the framers structured powers, they divided powers between the federal and state governments leaving most of it with states and they separated powers functionally at the federal level pitting power
against power as shows throughout. most important, though, they limited federal power through the in numbereration of powers for a few national concerns. and to make that crystal clear when they added the bill of rights, they concluded with the ninth amendment which states plainly we retain all the rights we never surrendered and tenth amendment which makes it equally plain the federal government has only the power we gave it, in a nut shell constitution establishes a government delegated enumerated and thus limited powers, further limited by our rights both enumerated and unenumerated. for all its virtues, though, the original design was fatally flawed as we all know. civil war amendments fixed that by fundamentally changing federalism mainly through the 14th amendment's privileges or immunities clause. made rights against federal government including natural
rights protected under ninth amendment, good against states as well save for those rights peculiarly related to distinct federal and state functions. we all know what happened to that clause and what happened section decades later when the new deal court turned that carefully wrought design on its head by eviscerating number rating powers principle, bifurcating the bill of rights and the role of the court, judicial review and jettisoning nondelegation doctrine. rather than rehearse those developments here, i'll return to justice scalia's view. a texturalist cannot ignore the plain text but he does. i'll start with a few powers cases where he tends to be better their rights. in fact, start with an anecdote. i invited him over to kato in 1993 with the idea of going toe-to-toe with him on the issue
of the demise of the doctrine of enumerated powers. before we got that, he said, where is wine? i said, this is lunch. he said so? so we had to send an intern out to get a bottle of wine. that loosened our respective tongues as if any of us needed that. we proceeded from there. i did say to him at one point, when are you going to revive doctrine of enumerated powers. roger, we lost that battle a long time ago. i said, thank you for that counsel of despair. two years later when lopez came down, he was on the right side as he was in morrison when that came down five years later. in prince, he wrote for the court in that case, the congress had no power to dragoon state
officials into carrying out federal functions. the medical marijuana case, he read the commerce power so broadly that madison in federalist 42 and marshall and gibbons would never have recognized it as justices thomas and o'connor made plain in their separate dissents. in sebelius and king, two big obama care cases he redeemed himself. even the correctly decided powers cases, however, only scratched the surface of enumerated powers doctrine. we're far down the road toward massive unconstitutional government. i'm the last to think that the court by itself is going to reverse that. in the rights cases, however, were more promising. except here scalia is all together uneven. in the interest of time i'll focus simply on the tate police power cases where most of the confusion arises.
consistent with the underlying theory of political legitimacy that i sketched earlier, the police power state of nature locks executive power and delegate to government is mainly there to secure rights. bounded by rights there are to be secured. and the question, then, from lockner to lawrence, and in many cases in between, the question should be what rights the state is securing by a law criminalizing, say, the sale of contraceptives or marrying someone of another race. if the state can point to no such rights, that settles it. the judge doesn't have to discover unenumerated rights, it's the state that has to identify rights to be protected under the police power. as with enumerated powers, then, where there is no power by implication there is a right.
hamilton, wilson and others objected to adding a bill of rights because they saw it was impossible to enumerate all of our rights and dangerous to enumerate only some. the structural limits were meant to secure our liberty. power pitted against power. the enumeration of federal powers and later a narrow reading of the state police power consistent with the privileges or immunities we enjoyed as citizens of the united states. indeed, did we have no rights prior to adding a bill of rights, or lose rights when we added one? that's the implication if judges are to secure only enumerated rights as many conservatives today, including justice scalia, have argued. the ninth amendment written to dispel that reading. textural ignore states immunities clause 14th amendment. so why do so many conservatives
indulge that reading? responding understandably to the perceived judicial activism of the war. berger, bickell, bourque, scalia on counter difficulty and need for justices to disclose passive virtues. in so doing they ignored majoritiarian difficulty which deeply concerned framers. framers stood for liberty first majoritiarianism second. one means toward liberty. main means was structured including revised principle federalism. we tend to think of federalism as states protecting liberty vis-a-vis the federal government, but it cuts the other way, too, protecting against grassroots tyranny. that's what justice scalia too little appreciated. his work for securing
originalism was invaluable and he will be long remembered for that. but let's secure the whole of originalism. thank you. [ applause ] good afternoon. it's great to be here. judge pryor came and visited harvard law campus back in my day. i don't think he was a judge yet. i think it was rumored or something. it was controversial. a lot of the harvard faculty thought he would commence a reign of terror on the bench. once i heard that, that was probably the best seal of approval i could imagine short of justice scalia. sure enough he was proven to be a good judge. i'm thankful to be with him. think of an anecdote, a constituent asked me about an
issue with municipal trash cleanup in their neighborhood. i responded and said it's an important issue. i'm your federal representative in the u.s. congress. we deal with federal issues. she said, yeah, i know, i just thought i'd start at the bottom of the totem pole and work my way up. and the thing about that is there's a truth to that not because congress is a punching bag but i think congress stands today as the weakest of the three branches in our constitutional system. i think justice scalia was very, very articulate about identifying structural constitution as the number one protector of individual liberty that you would have these different branches and they would compete with one another. they would be zealous about guarding their power. that even more that the bill of rights is how we would preserve and protect individual liberty. it's interesting, the founders if you read madison and federalist, we hear about three co-equal branches of government.
the founders didn't envision necessarily to be equal, envision them to repeat. madison said in republican government, the legislative authority necessarily predominates. in fact, although the revolution against executive authority, the coast guard, impulse of that was they saw runaway legislatures of the state at the time. they wanted a government of, by, and for the people, they didn't want it to be a tyranny of the yort. they knew that the congress would be powerful but they wanted to have other branches that would also check it. even with those checks, they just thought the branch closest to the people, at least the house, would have the most power. the original constitutional design, just look at congress's power. the power of the purse. obviously the power to legislate. can you prevent stocking with personnel by not confirming people. can you impeach civil officers. president, vice president, circumscribe jurisdiction of the
court. you don't need to create lower courts, you can abolish them. they understood presidency in foreign affairs but legislature how they envision it. yes hamilton said executive can undertake extensive arduous enterprises for public benefit. if congress isn't providing funding for those enterprises, they are going to amount to nothing. of course the courts were in contestably the weakest of the three branches of government. ness force nor will but judgment. an important role, absolutely, but you're not able to legislate from the bench. the current practice, i think, to me the executive by far is the most powerful. then i would say the courts. the courts probably have as much legislative authority as we do. certainly more power over the constitution. part of the reason the executive has gained so much power is through congressional neglect. congress will legislate and say,
well, we really can't deal with thorny issues, beaurocracy you figure it out. beaurocra bureeaurocracy legislates. the hobby lobby went to court. paved the way for administrative overreach. a statute is ambiguous or even a long statute that's been on the books for decades, the administrative agencies, executive branch going beyond that legislating vast new policies with tremendous effect on american society and american economy. i was my first state of the union when i got elected 2012, president obama came and said congress, i want you to do what i say. if you don't enact it, i'm going to do it on my own. we had just gotten sworn in a couple weeks ago. i was like, that's not exactly how it was written down in the constitution. the thing that bothered me the most about it, not that the
president assume thanksgiving authority, founders assumed each branch would try to exceed its constitutional limits. what bothered me, i looked to my left, every single democrat in that chamber stood and cheered him when he said that. so they were willing to put their personal, political viewpoints ahead of their duty to defend their own institution, which i think is defending the constitution. so it's a problem in both ways. the executive branch and congressional accountability, we did this with the irs in terms of dealing with the targeting, obviously the justice department was not going to do anything. we knew that from the beginning. at least conduct oversight, doults, destroyed e-mails that were subpoenaed. the commissioner made multiple false statements. he admitted statements were false. they didn't do basic due diligence, look at learners blackberry. what happens? nothing. to me from congress's
fecklessness, destroy the stuff. don't worry about it. nothing is going to happen to you. if the head of the executive branch concurs in kind of doing what you're doing. of course the courts have also helped the executive become more powerful by deferring to what the administrative agencies do. to me i think you should apply the law as it's written, not defer to the executive branch because that allows the administrative state to get bigger. so i think that justice scalia, nobody has been more influential for law students, for lawyers, judges, if you're on the center right. i just wish his wisdom would make its way more into the halls of the united states congress. because scalia understood that you have to defend your own turf. one of the things that frustrates me is some of my colleagues say if we're debating a bill, you know, is it constitutional? do we have power? we'll let the courts figure that out. we do whatever -- we vote for
whatever we think is good unless and until the courts stop us. the problem with that courts can only decide cases or controversies. basically anything that would not lead to a lawsuit, you're basically saying there's not going to be anyone that's going to stand up for the constitution. our duty is to defend the constitution and act in conform answer with the constitution. i always said if there's a bill not constitutional, my duty is to vote against it regardless of what the courts may or may not do. it's not just congress. president bush when he signed mccain feingold said i think it's unconstitutional but let the courts figure it out. that's not the way to do it. if you think it's unconstitutional you've got to air on the side of the constitution. i think justice scalia would really -- i think he was really frustrated with congress. our big way to defend our powers, the obama care program took funding that really was never appropriated.
that's our core power, the power of the purse. what we did was file a lawsuit to vindicate the interest. we were able to move the ball forward. i think scalia would look at that and say why are you running to the courts to do that? you guys should defend it your self. you have the power, the power of the purse, to not confirm people, impeach, why don't you use powers rather than running for the court. i think at the end of the day we're in this budget problem where we do these big omnibuses where we're not willing to solve that. we're not willing to take political risk to defend our turf is the thing, so it ends up going let's file a lawsuit and let's do it. so it's an honor to be here. justice scalia really was the man for all seasons. he was one of the few people to really make an indelible mark not only on the law but on political philosophy. i just wish everything that's been discussed on this panel and this conference could make its way into the halls of the congress and we'll reclaim our constitutional authority and get
the constitutional system back into its proper form. thank you guys. [ applause ] >> okay. i want to first invite our panelist to respond to each other. from your seat, hopefully your mics are now live for you to do that. i would expect perhaps professor baker has some things to say in response. >> thanks. i'm going to attack him. roger and i debate every year but i didn't find much to attack. i want to follow up what jonathan said about prince. it was really important what you did, jonathan. i want to add if you look at the separate opinion by justice briar. the amazing thing he says i don't see why the federal government can't order local
officials to do it. it's more efficient. if you read the federalist, you will know the crux of the whole problem and why we changed from a confederation is, in fact, federalist 15, the whole point, you can't have one government telling another government what to do because eventually it won't work. see brexit. >> i was going to add i don't disagree, roger and i agree owner most things anyway, so that's not a surprise. the one area of scalia's legacy which i do find problematic was his support for chevron. it was sort of anomalous, he continued to support the idea of chevron even as we had this rise of the fourth branch, rise in
administrative state. certainly indicated some misgivings. but that's always one part of his legacy sharply disaccord to his views of formalism. that's what i would add in terms of criticism. >> i would just say on that, justice alito said he was actually changing on that, one. two, roger mentioned post new deal, didn't specifically articulate it this way, once you have the 17th amendment, it changes. the senate is no longer a protector of the states. that's what built the administrative state. he's trying to figure out how do you deal with this? how do you draw lines? will the courts then end up replacing the administrative agencies and running everything? what most people don't understand, especially populists
is that that was a real structural protection. it is the driver behind the administrative state and the uncontrollable budgets. that is just not widely known. he understood that. with that, it is very difficult to reverse the dynamic. he didn't think the courts were in the business of reversing that dynamic. >> roger. >> yes. [ inaudible ] inaudible [ inaudible ]. >> this is breaking down fast.
i think we'll start with questions from the floor. i'll begin with my usual admonition. these are the panelists, they were invited to be our speakers. we appreciate your presence here. we love to have your questions but you weren't asked to be speakers today. so i want to ask for questions. you can introduce it with a little bit but please keep it as a question. >> from the kato institute. to the extent you enjoyed justice scalia's, i had to edit it, so you're welcome. just kidding. i had to introduce a couple of comments. invite speculation on scalia's -- post new deal regulatory state, drug war exception to the constitution, something else? >> i think it was his failure to agree with justice thomas on how properly to read the commerce
clause. >> or was it -- >> both of them. i think that goes back to what i said, the new deal is a watershed but it affects not only the interpretation per se, it affects the dynamic. i think he felt there was no way don't ask, don't tell that. when we would bring this up in sessions, he would say, well, that's water under the bridge. look, he fought more battles than anybody else. i think there were just some battles that he didn't. early on when we would cover flask, those this morning heard justice alito and how justice scalia excoriated him for not saying it should be overruled. early on when we were teaching, he said why don't you overrule
it? he said my colleagues won't. he won't argue for it. it comes down to the votes on the court. if there aren't votes to do something, it's not going to get done. one time i had a case up there and he said i could ask him afterwards why they didn't take it. you know, the votes weren't there is what it came down to. [ inaudible ]. >> if the federalist is one of the central topics on this panel, if you're talking about general welfare clause, commerce clause and necessary improper clause, which are the three clauses which we have gotten -- you can do no better than federalist 41, 42 and 44 respectively and you'll find exactly what madison thought those clauses were all about.
they weren't about allowing a decision like came out. >> not just people on the left but overwhelmingly people on the right do not understand our structure. the latest vote -- latest poll on the electoral college is the vast majority of american people wan to throw it out. they have no idea what that will do. [ inaudible ] [ laughter ] >> they don't know what it did. >> we're going to take a question from the right -- this side that's to my right. >> from scalia law school. if you show me, i will show restraint and not ask about 17th amendment. but i will ask about, though, i was struck by congressman's remarks on federalist and thinking about federalist 62 where they made the argument for
bicameralism based on the idea legislature is the real threat and remedy for this is to break the legislature into two parts and use bicameralism. i'd just be curious about the panel's reflexes on by cam ralism in the modern age as perhaps it relates to federalist 62. it's not a well formulated question. maybe you can do something interesting with it. >> at least it was a question. >> i've seen has been different than how mad saab and hamilton -- they really thought you would side with your institution. but in some of the budget fights we had congress passed unified budget for the first time in 15 years, last year, 2015. we started appropriation bills in the house. it got to the senate. harry reid would filibuster the bill brought up. basically no agencies funded. go all the way to the deadline and force some kind of omnibus or continued resolution. what they were doing, you had a minority in the senate siding
with the executive branch over a core power. i think we weren't able -- weren't able to figure that one out. that is not, i think, what we should have been doing. we should have been standing with the house to try to rein in the president is how it was designed. >> i'm a man of scholar, hard for me to say he got anything wrong. but the one thing i would he would be astonished by, state of the union the congressman was talking about. as a minnesota scholar i was in disbelief the president said because you have not carried out my reforms, i've decided to circumvent you and make you nonnentity and got rapturous applause from half the chamber. i think madison believed institutional interest would overcome political alliances in that sense.
representing the house of representatives in the aca lawsuit. i have to say i was surprised to see the level of democratic opposition. we were fighting over the power of the purse, the defining power of congress. so there is a strange thing going on that i think that madison did not anticipate with regard to who the members are and how they have changed. i think that is different. i went to congress when i was a 14-year-old page and there were people there, giants, who fought for the institution. not just people like bird and javits and moynihan, they fought for institutional integrity of both chambers. that's what's missing today. i hear that in -- >> let's wait two months. i guarantee you'll have democrats much more receptive to these arguments. it's an open question how republicans are going to respond, if there are similar actions taken are we going to defend the institution when the politically easy thing to do is
probably fall in line behind the president. hopefully the rubber doesn't meet the road on that and the president conducts himself. i think it will be interesting to see how it shakes out. >> i would just say i'm so encouraged to hear the congressman's comments about reclaiming the lost power of the legislative branch in this country. you know, i talked about the dozens of lawsuits we filed. it was really a cause. we were forced to file those lawsuits because it was very clear that the executive branch had overstepped its authority. when the president stands up and says i literally have a pen and a phone and i'm going to do what i want to do and he's being applauded by congress. it's really disturbing. so i really -- if you don't get anything accomplished the next two years, we're looking for candidate for ag in florida 2018. you'll enjoy that job. >> i will say, though, i think part was political. we saw with the election outcome, some people were shocked. they thought democrats would
never lose the white house again so i think that was part of it. hey, republicans aren't going to be in that spot. us doing this is not really setting bad precedents. what happens? you support bad precedent and who ends up president? donald trump who many of them are concerned about. so be careful. never invest power into a person who you would not be comfortable if your greatest enemy exercised that power. >> on that point i want to add professor turley was the one who washed liberals before a house committee that if you don't top this president, you're going to get a republican in here one day who is going to do the same thing. >> question. >> thank you, your honor. i want to -- i want to reassure professor baker that idaho loves the electoral college. we don't want to give it up. with a million and a half citizens, we have a problem with overregulation. we have 722 sets of regulations in idaho.
that's pretty much strangling us. so without the senatorial check and the case got rid of legislative veto for unicamm unicammeral, passed bicameral. since we lost -- got the 17th amendment is the legislative veto viable at the federal level on a bicameral basis and i'm also wobdering what roger and professor baker in particular have to say about that. >> you want a legislative veto, two houses? >> i would love to have it myself. no. yeah, the two houses together got rid of executive branch. >> here is the problem with many people on the left and the right. they see a particular problem and they look only at that problem. they come up with a solution for that problem without thinking
about the consequences the new problems they are creating. have you to look at the whole body together and figure out what you're doing. remember, the 17th amendment was passed with virtually no opposition by populous on the right and left except the populous on the left knew what they were doing. they were out to destroy separation of powers. nobody made the argument, structural arguments. they made the same arguments that are today being made for term limiting members of congress. okay? they thought they would bring senators closer to the people. nothing could be further from the truth. so you have to know something about the constitution before you keep changing things in it. it's a matter of looking at what worked and why it will work. or to borrow a phrase, what really did make us a great
country? >> justice scalia often said 16th and 17th amendments both passed in 1913 at the height of the progressive era were the key to understanding the emergency -- however, neither of thosalities expanded the power of congress. congress didn't have a bit more power afterward than it had before except as a practical matter, a political matter, that is to say, now you've got political forces calling for the demise of the number rated powers doctrine but it fell finally to the court in 1937 to expunge, eviscerate the doctrine. >> but they would never have done it if senators were industrial protecting states because they wouldn't have put up with it. >> political point -- >> no. but it changes the dynamic of power. what the federalists explain is human nature and what motivates people. today we think policy.
well, wait a minute. policies are executed by human beings. what are their motives? >> take another question. >> thank you. >> i used to be chief of federal litigation for mile dade now state attorney. >> what's your name? >> craig -- one issue i say related to federalism, i wanted to ask you about it and justice scalia thought about it. a case in the city of pittsburgh that talked about how state really have authority over their local governments. what's occurred to me and many of my students when i teach them about state and local government, federal government exercises a lot of authority over counties and cities. us c-section 1983 through a number of other acts and statutes and through the administrative agencies, which i'm not making judgment on this but i find it interesting. if you truly have federalism but
the federal government is the one, for example, regulating city police departments or county police departments not the state, do you really have federalism? >> you do. because as i said in my formal remarks, federalism cuts both ways. it's not simply the federal government has limited power and the states have the balance of power, federalist 45, it's rather that the civil war amendments change that arrangement fundamentally. now you've got federal power essentially to negate state actions that are in violation of their own citizens. that's all together different from federal power to give us obama care, what not. it's federal power to negate states that are running amok. that's the other side of federalism that the civil war amendments brought into being.
that's the side that so many conservatives find uncomfortable because they think of it assel powering the court to find enumerated rights. what i tried to argue was that, no, it empowers the court to tell the state what right is this police power protecting. when you look at everything from lockner to pierce, society of sisters, meyer v. nebraska, gris wald, lawrence, you find these are moral arguments, not defense of rights of individuals. >> thank you, judge. my name is justin pearson, an attorney at institute of justice. >> okay. could you speak a little closer to the microphone so we can hear you better. >> my question directed at congressman desantos.
the duty to not support unconstitutional legislation. my question to you, congressman, whether you think that is mutually exclusive with the role of courts to use the constitution to serve as additional bulwark against legislative encroachments as hamilton promised in federalist 78 when elected officials fail to fulfill that duty. >> justice scalia would say this, the idea of review is not policy questions, this is a lawyer's job. have you a constitutional text. have you a statutory text. if they are harmonious, then fine. if there's a conflict, your job is to identify the conflict and prefer fundamental laws representing constitution over transient impulses of the people as represented in the statute. that is absolutely legitimate. but this is something that these cases are brought to them. they can't go out and do it.
they can't go beyond what the case is. i would also say that just because a court has found something to be constitutional if you found something as a legislator, the court got it wrong, you have a duty to vote against statute. many say the court ruled i'm fine, you won't be criticized for that. but courts don't always get it right. we have to render our own judgment. doesn't mean you don't follow court decisions. but at the same time we're not under obligation to vote for statutes we honestly don't believe are constitutional. >> i would just add a lot of times people don't realize you can have two separate viewpoints all together between the congress and the court. that is when the court rules on something as to whether it's necessary and proper, they are ruling as to whether the congress could find this necessary and proper. it doesn't mean as a member of congress you have to say it's necessary and proper, and that is a constitutional issue.
>> next question. >> with madison coalition. 25 years ago i was newt gingrich's committee council, we thought congress could fix everything. i would be interested in the opinion of the panel about an effort now going on coming up from the states. there are 900 state legislators and six governors and 19 state legislative chambers and the republican national committee's unanimous endorsement and language in the platform, republican platform. for a constitutional version of the act almost every house republican voted for that would require congress approve major new federal regulations. the idea is in the same way that states we're able to force congress to propose the bill of rights without a convention. more recently the 17th amendment and presidential term limits. pressure from the states could persuade congress to do what's in its own interest and reclaim executive branch power, article
1 power stolen by executive branch. your thoughts on regulation freedom amendment and strategy. >> i'm generally against issues like the rains act because i think that it's important to use the constitution for suv we cannot achieve legislatively. congress asking them again to bring up the rains act. i think it's a useful tool to get congress back in the business of governing. there's a lie that congress is governing. 90% of agency decisions are not reviewed, increasingly done independently. i think that is a serious danger for a democratic system. more and more of our decisions are being decided by this insulated group of agency officials the public has no intersection with them and doesn't know who they are. even trivial thing like unknown office declaring that the redskins can't use the redskins
name. this is a raging debate. i'm not involved. i'm a bears fan. but the fact is, you had this unknown office step in and say, all right, we're bog to settle the question. you don't have trademark protections. you can't use that name. it's an example of what we talked about with the fourth branch. largely that's insulated from congress. congress doesn't have the ability, staff to look at agencies. that would change with something like reins act, you pass the act rather than support constitution. >> i would support a constitution of four words, "and we mean it." [ laughter ] >> next question. >> i'm warren belmar, i'm a recovering attorney with one question. is there any vitality left to shake the tree? and if not, why not? >> according to justice scalia
there wasn't. >> vitality to -- >> he used to say companion case but that's before he started rethinking chevron. >> only limit we had on delegateses of -- delegation of executive branch. >> bus toss gaylord for annual dinner could be boarded on the desale street side of the hotel. can you access the sail street side exiting the door outside to the gift shop. please ask staff member, they will direct you. buses leave for the gaylord from now until 6:00 p.m. for the return trip, buses will depart at the conclusion of the dinner
>> congress back, senate lawmakers debateing a bill regarding health care for rural areas. see senate live on c-span2. u.s. house will gavel back in tomorrow and democrats will hold leadership elections as nancy pelosi seeks to continue as minority leader. later in the week work on fda approval of drugs and medical devices. house members might consider defense programs. see the house live on companion network c-span. former homeland security secretary michael chertoff part of the discussion u.s. preparedness against isis terror attacks. c-span live coverage.
more as justice clarence thomas remembers his colleague antonin scalia. he's introduced by the justice's son eugene. [ applause ] >> i want to announce that the federal society annual dinner will from now on be the antonin scalia memorial dinner. [ applause ] and to introduce the guest speaker tonight, i am going to call justice scalia's son,
eugene. he currently works at gibson, dunn, and crusher. eugene. [ applause ] >> gene, thank you. and i'd like to thank you you, the federal society and so many of you in the room tonight for all you've done these past months to honor my father's legacy and to support his family. i'd like to express special thanks to leonard leo. my father would be deeply touched by this tribute at the conference this week and the naming of this dinner after him. the affection that you all have shown him was reciprocated. my father was proud of the federal society. he manifested this pride occasionally by claiming that he
actually had established the federal society and was responsible for it's existence. he was pleased that his earliest clerks included gary lawson and ste steve. 25 years ago my father gained another friend, a great friend, an ally that would occasionally challenge him. it is impossible to fully appreciate my father's tenure in a court, in his legacy without understanding his historic collaboration with justice thomas. what many considered to be my father's greatest opinions did
not impress his colleagues. it did not get another vote. what a different court it became when my father gained a colleague who shared his interest in constitution structure and it's checks on government power. how much we all have benefitted from the fact that while he shared these interests with my father, justice thomas did identify areas of disagreement where he questioned and pushed my father. he pushed him on what my father playful called his think hearted originalism. and he pushed justice scalia in that area that was my father's greatest passion, administrative law, engaging him in a debate about the roles of courts and the executive in the interpretation of law. that continues today and a
debate of importance. justice thomas my father found him at his back. in doing his job as the constitution required so they could as they both would say, get it right. and a colleague who thinking deepen in our society. equally important actually as a son, may be more important in justice thomas my father found a true friend. someone who shared his laughter and his deep steadfast loyalty, a man with incredible warmth, decency, and wisdom. someone who simply was there to cheer my father and brighten his days for his last 25 years. and i'll just add, a great comfort to my mother and my family, including my own children in these past months.
we are all fortunate to have justice thomas on the court and equally fortunate to have his as my friend. justice thomas. [ applause ] >> thank you. thank you. thank you all. thank you all. joan, thank you for that amazing introduction. makes me want to quit while i'm ahead. may take a moment of personal liberty here and first of all just recognize my dear friend,
maureen scalia and the entire scalia family. would you all rise so we could -- [ applause ] i'd also like to point out that my bride is here, virginia. [ applause ] and seeing the travel like nuns, we travel in pairs here. i have been very, very fortunate, i've seen many of my friends here. quite a few of my former law
clerks and my adopted law clerks are here. i have no idea how many. couldout please stand so i could at least see who you are. [ applause ] well, that's pretty humbling. thank you all. this is an unbelievable crowd. this is an amazing conference and a convention and an amazing dinner. that was a very touching video. certainly got to me. i'm pondering why is this spoon and this fork up here? it's amazing the things that distract you, you know?
before i go on, i'd like to just also say good evening to martha, and my colleague sam alito who are here. [ applause ] i'm not running for office, but these are important people in my life. you know, starting with that beautiful film and so much of what is going on here, much has been said about my friend, justice scalia. since his untimely and very sad passing this february, and much more will be said during this convention, convention appropriately dedicated to his legacy. though much may be said about him, little needs to be said for
him. his opinions, books, articles, speeches, lectures, and countless other exchanges of ideas leave his voice forever with us. many of you may recall, but not so fondly, the heavy day us of the 1970s. when the emphasis in constitutional law was on rights there was also a focus on the use of judicial power. in those days we ganl the study of law. the constitution though it was zet out at the beginning of our case books was but an afterthought. rarely to be consulted or disturbed. this state of affairs did not sit well with justice scalia. he traveled far and wide,
challenging students and all who would listen and i can hear his voice, what do you think is the reason that america is such a free country? if you think a bill of rights sets us apart. you're crazy. every banana public in the world, every president alike has a bill of rights. the bill of rights for the former evil empire, the union of soviet socialist republics was much better than ours. he would then make his point without the structural constraints that the constitution places on government power, the bill of rights is just words on paper. or in a more originalist saying, merely a parchment guaranteed. limits were of special concern.
this concern informed his approach to statutory constitution and constitutional interpretation. our role is to be confined to those that draft the constitution or enacted the la u in question and what those words meant to the people when they were drafted. in short, the original meaning. we as judges do not get to freelance or put our personal laws on these laws. even in areas in which others might tune out from boredom, such as jurisdiction, standing, or rightness, justice scalia was ever vigilant about power being exercised where judges had no authority. thus encroaching on the authority of other branches or the states.
one sees this abiding concern and justice scalia's commitment to the cannons of statutory construction. who else would labor so diligently and exhaustively on a book on the 57 cannons of construction? i watched a number of occasions as he dragged himself out of his office after laboring over his court work only to work endless hours on his book. reading law. as complicated and intricate as these cannons may sound. they all serve a single purpose. uphold the structural constraints of the constitution in order to protect our liberties. we as judges employ the cannons to disearn the commonly meaning of those chosen by congress.
we do not resort to our pred lixs to define what congress might have intended. as hard as he worked, he seemed to savor every chance to argue for chance to enhance liberty and restrains the exercise of government power. along the way, he seemed to relish doing his work. springing with humor and his wonderful flair for pros. those the work is monument tally serious, he just seemed to have fun doing it and how well he did it. i can't resist citing a few of his memorable quips when he drafted a particularly good one, he loved to give me a dramatic reading. [ laughter ] brother clarence, you have to hear this one. then, a not so quick computer
search took place until the handy work appeared. while a judge on the d.c. circuit in the statutory interpretation case about labeling requirements for meat products of all things he quoted bismarck to warn us that, quote, no man should see how laws or sausages are made. later in lamb's chapel, he famously described the courts lemon test the constitution's establishment clause and i quote, some ghoul in the night horror movie that repeatedly sits up in it's grave and shuffles abroad about being repeatedly killed after being repeatedly killed and buried. he gives a ooooo. he always did that when he read it.
about you are a juris prudence, once again frightening the little children and the school attorneys of center union free school district. ohhhh. i don't know where that came from, but he always did it. to register his disagreement about the disagreement. he said if forbidding peaceful, non-threatening, but uninvited speech from a distance closer than eight feet is a means of preventing the obstruction of entrance to medical facilities. the governmental interest estate asserts, narrow tailoring must refer not to the standards of versace, but to those of omar the tent maker. i have no idea where he gets
these things. [ laughter ] like wise, in maryland he came, he rejected the court's decision that swabbing the cheeks of a arrestees was a constitutional search. in his words, and i quote, i doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection. and in lee versus whiteman, justice scalia mentioned, i find it sufficient embarrassment that our establishment clause, juris prudence regarding holiday displays has come to require scrutiny more commonly associated with interior decorators than with the judiciary. but at least he went on interior decorating is a rock-hard science compared to the psychology practiced by amateurs
to decide whether a prayer during a graduation ceremony was too coercive for high school students. to be sure, he would be biding at times. the court's opinion and national endowment for the arts he said, the operation was a success. but the patient died. what such a procedure is to medicine, the court's opinion in this case is to law. and scalia did in the discrimina discriminate. and in my opinion, by the way, i did not get a dramatic reading of this one. of my majority opinion, a case
involving the constitutionality of a search of a suspected drunk driver based on a anonymous tip he wrote, and i quote, the court's opinion serves us of freedom destroying cocktail. itch no idea where he got that. he blames his law clerks, but i have better ideas. justice sclee ya asked the question, questions like, what is golf? pga tour versus martin he wrote, i am sure that the framers of the constitution aware of the 1457 eat it of king james the ii of scotland prohibiting golf because it interfered with the practice of archery.
fully expected that sooner or later, the paths of golf and government, the law and the links would once again cross and that the judges of this agust court will some day have to wrestle with the age old juris prudential question for which their years of study in the law have so well prepared them. is someone riding around a golf course from shot to shot really a golfer? [ applause ] in one case he reminded us of the timeless truism that campaign promises are by long democratic tradition the least binding form of human
commitment. and in another, that we american people are neither sheep nor fools when it comes to campaign speech. and we will not soon forget the rebuke of legislative history, there the court reasoned that the absence of legislative history could be likened to the dog that did not bark. justice scalia responded, and i quote, a part from the questionable wisdom of assuming that dogs will bark when something important is happening, we have forcefully and explicitly rejected the conan doyle approach to statutory construction in the past. in ascertaining the meaning of a statue, a court cannot in the manner of sherlock holmes pursue the theory of the dog that did not bark. we are here to apply the
statute, not the legislative history and certainly not the absence of legislative history. statutes are the law. though sleeping dogs lie. for decades and cases big and small, justice scalia delighted us with his command of the english language, his pros and often side splitting humor. but tonight, i charge us with the following responsibility that these words spoken and written by justice scalia not be the final words in support of originalism and constitutionalism. 153 years ago almost to the day, president lincoln said in gettysburg, the world with little note will long remember what you say here.
it is for us, the living, rather to be dedicated here to be unfinished work. that we take increased devotion to that cause for which they gave the last full measure of devotion. and that government of the people, by the people, for the people, shall not parish from the earth. justice scalia has done his part to preserve our liberties and to properly interpret our laws and our constitutional so that this government of the people shall not parish. his life's work is now ours to finish. at the risk of being repepttive, but at the hope of establishing a point, justice scalia's project is simple, if we adhere to the structure of government described by our constitution,
we protect liberty and freedom. the limitations on legislative power and in article i, the limitations o on executive power in article ii and the limb takes on the juice dishl power in article iii, those are our constitutional safeguards. those protect our liberty and our freedom. madison put it best in federalist li, the angel's worked neither external nor internal controls on government would be necessary. whether framing a government, the great difficulty lies in this, you must first enable the government to control the government. and in the next place, oblige to
control itself. his daily task was to oblige the government to control itself and to convince americans to implor their government to do the same. only with limited government is our justice secure. only justice's of the government in designing that structure the framers themselves considered how much co mingling of the branches was acceptable and set forth their conclusions in the document. the constitution answer this most important question who will decide the congress, the president, the courts, the states, the people. and when the branches dare tote constitution's answer to that
most important question, the question of who will decide justice scalia's wrath was sure to come down upon him. perhaps justice scalia's project requiring more than mere parch. barriers between the branches of government seems academic to some, but it is anything but academic. as justice scalia commented, and i quote, the separation of powers may prevent us from righting every wrong, but it does so in order to ensure that we do not lose liberty. without this separation of powers, the picture alexander hamilton painted of an all powerful congress, quote the hideous monster whose jaus spare neither sex nor age nor high nor
low nor sacred nor profane becomes reality. that hid reduce monster devours the power of the states. it devours our freedom, and our most inate set desire to be left alone. with unchecked congressional power, congress can commandeer the states to do the work of the federal government. that it cannot do as justice scalia wrote for the court and prince versus united states with unchecked congressional power. congress can skirt it's legislative duties and avoid political accountability by dell investigating legislative power to a group of outsiders. as justice sclooe ja humorously stated in the case, what results is a sort of junior varsity congress incompatible with our
constitutional structure, without the separation of powers, the branches take it upon themselves to determine just how much of the purely executive powers of government must be within the full control of the president. in morrison versus olson, the wolf came as a wolf according to to the justice scalia, when congress appropriated executive power for itself and created the office of independent council, without separation of powers, the executive branch no less co-ops the legislative power for itself. with unchecked power, they are emboldened to legislate without limitations in the nearly 180,000 pages to the code of federal regulations. judicial deference to agency decision-making becomes a rubber
stamp for agencies to do as they please. and they can freely pretend that congress hides elephants in mouse holes and justice scalia's words when congress directs them to act, finally, without the separation of powers, the judicial power is unrecognizable. . as the political branches is a grandized power, so too do the courts. today, it is the view of many that the supreme court is the giver of liberties. what an odd conception that we the people are dependent upon the third branch of government to grand us our freedom. it is this last point for which we remember justice scalia so well. the court at times seems incapable of admitting t